Prosecutors
did not commit misconduct at the trial of three gang members convicted of the
1996 murder of Dr. Haing Ngor, who survived the horrors of the Pol Pot regime
in Cambodia
to win an Academy Award before being shot dead in the carport of his Los
Angeles residence, the Ninth
U.S. Circuit Court of Appeals ruled yesterday.

The
three-judge panel reversed the contrary ruling of U.S. District Judge Margaret
M. Morrow of the Central District of California and reinstated the convictions
of Tak Sun Tan, Jason Chan and Indra Lim. Chan is serving life without parole,
Tan 56 years to life, and Lim 26 years to life for the murder.

The
three—who were found guilty by three separate juries in the courtroom of
since-retired Los Angeles Superior Court Judge J.D. Smith—were identified as
members of the Oriental Lazy Boyz gang, or O.L.B. Prosecutors theorized that
Ngor was robbed for drug money, and that he was shot twice after he resisted
the robbers rather than give up a gold locket containing a photo of his late
wife.

Wife’s
Death

Houy
Ngor died in childbirth in 1975 while she and her husband were in forced labor
in the rice fields. Their niece, who testified at the trial, explained that
while Ngor was a gynecologist, he did not attempt to deliver the child himself
for fear that the entire family would be massacred if the ruling Khmer Rouge—a
peasant-based Communist movement that was responsible for perhaps 2 million
deaths and despised city-dwellers, educated people, and western influencesm,
including western medicine--realized that he was a doctor.

Ngor
later escaped to Thailand,
came to the United States
as a refugee in 1981, and secured a role in the 1984 movie “The Killing
Fields,” in which he portrayed another survivor, Dith Pran, a translator for
journalist Sydney Schanberg.

Ngor
was honored for the role, his first, as the year’s Best Supporting Actor and
went on to appear in 16 more films. He also wrote an autobiography, continued
to work in the medical field, and started a foundation to help the poor in Cambodia.

Defense
attorneys argued that their clients were uninvolved and that the killing was
political, but presented no evidence to support the theory.

In
ordering the three retried, Morrow adopted a magistrate judge’s findings that
Deputy District Attorney Craig Hum was guilty of improper argument. Hum, the
court found, played on jurors’ sympathies by emphasizing Ngor’s life story,
argued contrary to the facts when he claimed that the picture in the locket was
the only one Ngor had of his wife, and “fictionalized” an account of the
struggle over the locket.

But
Senior Judge Stephen S. Trott, writing for the Ninth Circuit, said the lower
court should have deferred to the ruling of this district’s Court of Appeal
that there was no prosecutorial misconduct.

Trott
agreed with the Court of Appeal that while Hum’s “rhetoric may have been a
little overblown,” his explanation of Ngor’s life story went to the heart of
the prosecution case—that while Ngor willingly gave up his gold Rolex to the
robbers, his “intense emotional attachment to his locket” and unwillingness to
give it up explained why he was killed.

That,
Trott said, tended to debunk the defense theory and explain why the defendants,
who had regularly snatched purses and jewelry from previous victims but had not
shot them, acted as they did on this occasion.

The
judge also rejected the argument that the prosecutor misstated evidence when he
referred to the image in the locket as Ngor’s only picture of his wife, when in
fact he still possessed the negative.

The
argument, Trott said, was a “failed attempt...to make something out of
nothing.” It was, the judge said, “clear that Dr. Ngor had only one image of
his wife.”

Jury
Instructed

Besides,
the judge went on to say, the trial judge “took great pains” to properly
instruct the jury, admonishing multiple times that argument is not evidence and
that the verdict was to be based on the evidence and the law rather than on
passion or prejudice. The district court’s ruling, Trott said, ignored the
basic principle that jurors are presumed to follow the trial judge’s
instructions.

The
trial record as a whole, Trott added, shows that the defendants were treated
fairly. In addition to repeatedly admonishing the jury, Trott said, Smith
obtained assurances from the jurors that the victim’s fame and the fact he
received an Oscar would not be factored into the verdict.

“To
sum up, we are convinced that even if the prosecutor’s statements were improper
in the first place — which they were not — the trial court’s numerous and
thorough instructions eliminated any risk that the petitioners were denied due
process,” the appellate jurist wrote.